Federal Agencies Ignoring "Preemption" Requirement

July 15, 1999

Twelve years ago, President Ronald Reagan issued an executive order directing federal agencies to prepare federalism assessments in the course of issuing regulations. The assessments were aimed at determining if a new rule or regulation would preempt state and local laws.

However, according to the General Accounting Office, the agencies are paying no attention to the directive.

In a review of more than 11,000 rules and regulations issued from April 1996 to December 1998, the GAO found federal agencies had prepared only five federalism assessments.

The worst offender was the Environmental Protection Agency -- which completely ignored the order in issuing 1,900 rules during the period.

The order says federal agencies should refrain from establishing uniform national standards for programs with federalism implications.

When national standards are required, agencies should consult with appropriate officials and organizations representing the states in developing those standards.

The study was requested by the Chairman of the Senate Governmental Affairs Committee, Fred Thompson (R-Tenn.). He is the lead sponsor of the Federalism Accountability Act, which would require Congress and federal agencies to issue an explicit statement of intent when they preempt state or local law, and an explanation of the reasons for preemption.

"Everyone gives lip service and says we want this done," Thompson said during hearings yesterday, "then no one pays attention to the fact it's not getting done."

"It's not necessary to put this into law," John T. Spotila, a representative of the Office of Management and Budget, responded. "We can deal with this by executive order," he argued.

"How can you come up here and say you will do it when you are obviously not?" Thompson asked.

Spotila argued that the Thompson bill would "burden" agency efforts to protect safety, health and the environment by imposing new administrative requirements and encouraging additional litigation. He said the requirements would have "unintended consequences" and that officials were "scared to death" of potential litigation.